Jim Owensv.The
State.

1. Carrying
Weapons.--Indictment charged that the accused, having a pistol about his
person, unlawfully and willfully went into "a ball-room" at a designated
proprietor's, "where an assembly was then and there congregated for social
purposes," and specifically negatived that the accused was then and there within
any of the exceptions defined in the act of 1871, "to
regulate the carrying and bearing of deadly weapons." Held, a good
indictment under the 3d section of the act. It was not necessary to allege that
a ball or dance was going on when the offense was committed, or that the social
gathering was composed of men and women, or of human beings.

2. Same.--The exceptions
provided to the 1st section of said act are not applicable to the 3d; for
instance, the owner of the premises where a ball is going on is not licensed to
carry a prohibited weapon into the ball-room; nor does danger of an immediate
and pressing attack constitute a defense for carrying such a weapon into a
church, a circus, or other assemblage enumerated in the 3d section. The only
party excepted from the operation of the 3d section is an officer of the
peace.

Appeal from the County
Court of Houston. Tried below before the Hon. S. A.
Miller, County Judge.(p.405)

The charging part of the indictment alleged that
the appellant, "on the twenty-eighth day of December, in the year of our Lord
one thousand eight hundred and seventy-six, in the county of Houston aforesaid,
did unlawfully and willfully go into a ball-room with a pistol about his person,
the said ball-room being at Mrs. Simpson's, where an assembly was then and there
congregated for social purposes, the said Jim Owens not then and there being a
sheriff, nor then and there being a militiaman nor policeman in actual service,
nor peace officer, nor other officer, nor then and there being at his own place
of business, nor on his own premises, nor then and there being a traveler in the
state, nor then and there being in fear of an immediate and unlawful attack upon
his person or property, but then and there carrying said pistol unlawfully,"
etc.

W. B. Wall, for the appellant.

W. B. Dunham, for the State.

White, J. Appellant was
indicted under the 3d section of the "Act to regulate the keeping and bearing of
deadly weapons." Acts First Sess. Twelfth Legislature, 25;
2 Pasc. Dig., art. 6514. He was convicted, and his punishment
assessed at a fine of $50.

This 3d section reads as follows: "If any person
shall go into any church or religious assembly, or any schoolroom, or other
place where persons are assembled for amusement or for educational or scientific
purposes, or into any circus, show, or public exhibition of any kind, or into a
ball-room, social party, or social gathering, or to any election precinct on the
day or days of any election where any portion of the people of this state are
collected to vote at any election, or to any other place where people may be
assembled to muster, or to perform any other public duty (except as may be
required or permitted by law), or to any (p.406)other public assembly, and shall have or carry about his
person a pistol or other fire-arm, dirk, dagger, slung-shot, sword-cane, spear,
brass knuckles, bowie-knife, or any other kind of knife manufactured and sold
for the purposes of offense and defense, unless an officer of the
peace, he shall be guilty of a misdemeanor, and, on conviction thereof,
shall, for the first offense, be punished by fine of not less than fifty nor
more than five hundred dollars," etc.

The indictment charges that appellant "did unlawfully and willfully
go into a ball-room with a pistol about his person, the said ball-room being at
Mrs. Simpson's, where an assembly was then and there congregated for social
purposes," etc. The indictment then negatives the fact that defendant comes
within any of the classes of exceptions named in the act.

Several grounds are set forth in the motion to quash the indictment,
none of which are tenable. The indictment was good in the charge either that the
offense was committed in "a ball-room" or at "a social gathering," and it was
not necessary, as is contended, to allege that a ball or dance was going on in
the room, or that the social gathering was composed of men and women, or of
human beings as contradistinguished from other animals--these things being
matters of proof. The indictment simply followed the statute in defining the
offense, and ordinarily that has been held sufficient.

It would scarcely be contended by any one, we imagine, that the act
of carrying a pistol into "a ball-room," when no persons were present there,
would per se constitute an offense any more than to carry the pistol into
any other unoccupied house or room. The intention was specially to inhibit the
act when persons were assembled at the places or for the purposes named in the
law.

There is this further distinction to be noted between the provisions
of the 3d and the 1st sections of the act relative to (p.407)bearing deadly weapons. In the 1st
section it is provided "that this section shall not be so construed as to
prohibit any person from keeping or bearing arms on his or her own premises, or
at his or her own place of business, nor to prohibit sheriffs or other revenue
officers, and other civil officers, from keeping or bearing arms while engaged
in the discharge of their official duties, nor to prohibit persons traveling in
the state from keeping or carrying arms with their baggage," etc. And section 2 provides that a person accused under the 1st section
may prove, by way of defense, that he was in danger of an attack on his person,
immediate and pressing.

Now, the 3d section, which we have quoted
above, does not permit any one, "unless an officer of the peace," to
carry the prohibited weapons in any of the places therein enumerated; and,
according to our construction, not even the owner of the premises, unless a
peace officer, is under the law authorized or excusable in doing so. Such
places, when used for and appropriated to the purposes mentioned, are intended
to be kept sacred and inviolate from the rights and claims which attach to the
exercise of such acts of individual ownership under other circumstances. The
fact that I am owner of the premises gives me no right to carry deadly weapons
to the terror, annoyance, and danger of a social gathering which I may have
invited to my own house, however much I may be protected in carrying them when
no one is there or likely to be endangered by them but my own family.

Nor does it matter how much or with what good reason I may be in
dread of an immediate and pressing attack upon my person from a deadly enemy;
the imminence of such danger affords no excuse in my wearing deadly weapons to
church, or in a ball-room, or other places mentioned where his attack may be
made and the lives of innocent people there assembled placed in jeopardy or
sacrificed.

The defense relied on in this case was that Mrs. Simpson, (p.408)who was owner of the house where the ball was,
had invited the defendant to act as door-keeper and general manager, with
authority to preserve peace and good order during the continuance of the ball;
that she had taken the pistol in question from her son and given it to him, and
that the authority thus delegated in effect gave him for the occasion a
proprietary right to carry the weapon, the house being at the time, to all
intents and purposes, not only his castle in law, but actually his place of
business in fact.

A special instruction embodying this view of the law with relation
to the facts was asked by defendant's counsel, and very properly, as we think,
was refused by the court. Defendant had, however, the benefit of such defense in
the evidence he was allowed to introduce upon the trial, though it appears that
the jury, even if they believed it to be true--and very rightly, as we think--do
not seem to have considered it a sufficient excuse or extenuation of the
offense.

The charge of the court presented the law; the evidence sustains the
verdict; and, perceiving no material error in the record, the judgment of the
court below is in all things affirmed.